State of Cal. Dept. of Social Servs. v. Thompson, 00-17266.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation321 F.3d 835
Docket NumberNo. 00-17266.,00-17266.
PartiesSTATE OF CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Plaintiff, and Enedina Rosales, Intervenor-Appellant, v. Tommy G. THOMPSON, Secretary of the Department of Health and Human Services,<SMALL><SUP>*</SUP></SMALL> Defendant-Appellee.
Decision Date03 March 2003

Marjorie Shelvy, Barbara Jones (argued), Yolanda C. Arias, Silvia Argueta, Erin Shaffer, Kimberly Lewis, Legal Aid Foundation of Los Angeles, Los Angeles, CA, for the intervenor-appellant.

Jeffrey Clair, Department of Justice, Civil Division, Washington, DC, for the defendant-appellee.

Rochelle Bobroff, AARP Foundation Litigation, Washington, DC, for the amicus curiae.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-99-00355-FCD.

Before: THOMPSON, W. FLETCHER and BERZON, Circuit Judges.

BERZON, Circuit Judge.

"The practice of relatives or kin parenting children when their parents cannot is a time-honored tradition in most cultures." Kinship Care: A Natural Bridge: A Report of the Child Welfare League of America (1994). Increasingly, our own society has turned to relatives for assistance in providing foster homes to children in need of them.1 The issue here is under what circumstances foster parents who are related to their foster children can receive funds under the Aid to Families with Dependent Children Foster Care Program ("AFDC-FC").

AFDC-FC is a federal program administered by the States with federal financial participation. The program helps defray the cost of caring for needy foster children and thereby serves as an incentive for both kin and non-kin individuals and families to take in these children. Broadly speaking, eligibility for AFDC-FC funds depends on whether a child was eligible for AFDC benefits prior to being placed in foster care.2

In Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979), the Supreme Court held that foster parents who were related to the foster children in their care were entitled to AFDC-FC benefits on the same basis as unrelated foster care providers. Id. at 145-46, 99 S.Ct. 957. We are now asked to determine the scope of this eligibility for AFDC-FC. Specifically, we confront here the question whether, as the Secretary of the Department of Health and Human Services ("Secretary") posits, a child can receive AFDC-FC benefits only if he was AFDC-eligible in the home from which he was removed, termed "the home of removal."

It is helpful at the outset to understand the "home of removal" concept central to the Secretary's position. The "home of removal," in the Secretary's lexicon and as we use the term in this opinion, is the child's "legal" home with his or her parents or legal guardians — that is, with the adults who have legal custody of the child. Under the statute governing AFDC-FC, a child is considered to have been legally removed from such a home when removal occurs pursuant to either a judicial decree or a voluntary agreement. See 45 C.F.R. § 1356.21(k)(1). Once the child is so "removed" from this home, the home becomes the "home of removal." After this "legal" removal, a child is usually placed in foster care. Often, prior to legal removal a child will be physically removed from his or her parents' home and placed in the interim with a relative who provides daily care to the child.

The circumstances of the Intervenor-Appellant, Enedina Rosales, provide an example of these concepts: Ms. Rosales's grandson, Anthony, was placed informally in her custody prior to his official removal from his mother's home, because he was being abused in his mother's home. After the judicial decree issued legally removing Anthony from his mother's custody, Anthony remained with his grandmother, Ms. Rosales, and she became his official foster parent. In this scenario, the "home of removal" is Anthony's mother's home. It does not matter that Anthony had already been physically removed from his mother's home prior to the official removal by judicial decree. See 45 C.F.R. § 1356.21(k).

As can be seen in Anthony's situation, so-called AFDC-linkage, on which eligibility for AFDC-FC benefits depends, could be based either on the home of removal, Anthony's mother's home, or on his interim home with his related caregiver, his grandmother. Here, the distinction is crucial, because Anthony was not AFDC-eligible in his mother's home, but was eligible in his grandmother's home at the time the removal petition was filed. As will become clear, there are also other circumstances in which the distinction matters.

The Secretary maintains that under the statute, only AFDC-eligibility in the home of removal is pertinent. The district court deferred to the Secretary's interpretation of the applicable statute, 42 U.S.C. § 672,3 and held that eligibility for AFDC-FC could be based only on AFDC eligibility in the home of removal. Ms. Rosales now appeals the district court's order denying her motion for summary judgment and granting the Secretary's motion to dismiss.

I. Background
A. Statutory Framework

The AFDC-FC program, part of Title IV-E of the Social Security Act, provides funds to assist with the cost of foster care for dependent children. See §§ 672, 674, 675(4)(A). The program provides "foster care maintenance payments" which "cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation." § 675(4)(A). Both the state and the federal government contribute funds to the program, which then are distributed by state agencies. See §§ 670-672, 674.

The federal government will not contribute funds unless a state has a plan in place that meets the requirements of the federal statute. § 671(a). Among other requirements, a state plan must provide measures to ensure adequate standards for foster care homes and child care institutions. § 671(a)(10). Each plan must assure that every child receiving foster care payments is given appropriate care and services. § 671(a)(16); see also §§ 675(1), 675(5). The plan must also provide for the facilitation of a child's return to his or her own home. § 671(a)(15). If a state plan complies with the federal requirements, the Secretary must approve the state plan and provide the requisite federal financial contribution. See § 671(b).

The federal requirement at issue here is contained within § 672(a), which provides:

Each State with a plan approved under this part shall make foster care maintenance payments ... under this part with respect to a child who would have met the requirements of [§ 606(a) or § 607] (as such sections were in effect on July 16, 1996) but for his removal from the home of a relative (specified in [§ 606(a)] (as so in effect)), if —

(1) the removal from the home occurred pursuant to a voluntary placement agreement entered into by the child's parent or legal guardian, or was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and (effective October 1, 1983) that reasonable efforts of the type described in [§ 671(a)(15)] for a child have been made;

(2) such child's placement and care are the responsibility of (A) the State agency administering the State plan approved under [§ 671], or (B) any other public agency with whom the State agency administering or supervising the administration of the State plan approved under [§ 671] has made an agreement which is still in effect;

(3) such child has been placed in a foster family home or child-care institution as a result of the voluntary placement agreement or judicial determination referred to in paragraph (1); and

(4) such child —

(A) would have received aid under the State plan approved under [§ 602] (as in effect on July 16, 1996) in or for the month in which such agreement was entered into or court proceedings leading to the removal of such child from the home were initiated, or

(B)(i) would have received such aid in or for such month if application had been made therefor, or (ii) had been living with a relative specified in [§ 606(a)] (as in effect on July 16, 1996) within six months prior to the month in which such agreement was entered into or such proceedings were initiated, and would have received such aid in or for such month if in such month he had been living with such a relative and application therefor had been made.

§ 672(a).

As of July 1996, § 606(a) set eligibility requirements for AFDC by defining a "dependent child" as:

a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home ... or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) at the option of the State, under the age of nineteen and a full-time student in a secondary school....

§ 606(a) (1996). Former § 607 added to this definition needy children who met the age requirements of § 606(a) and who had "been deprived of parental support or care by reason of the unemployment" of the parent who was the principal earner in the family. § 607 (1996).

The problem underlying this lawsuit arises from the confluence of four circumstances:

First, all too often parents or legal guardians find themselves unable to care for their children, so the children are placed informally in the homes of relatives.

Second, the former AFDC program (like the present TANF program) provided that children living...

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